Posts from March 2006

March 23, 2006

Pace/MacGill Gallery, New YorkThe man in "Head No. 13, 2000," by Philip-Lorca diCorcia is Erno Nussenzweig. When he saw his picture in an exhibition catalog for diCorcia's "Heads," he sued the photographer and his gallery.

IN 1999 Philip-Lorca diCorcia set up his camera on a tripod in Times
Square, attached strobe lights to scaffolding across the street and, in
the time-honored tradition of street photography, took a random series
of pictures of strangers passing under his lights. The project
continued for two years, culminating in an exhibition of photographs
called "Heads" at Pace/MacGill Gallery in Chelsea. "Mr. diCorcia's
pictures remind us, among other things, that we are each our own little
universe of secrets, and vulnerable," Michael Kimmelman wrote,
reviewing the show in The New York Times. "Good art makes you see the
world differently, at least for a while, and after seeing Mr.
diCorcia's new 'Heads,' for the next few hours you won't pass another
person on the street in the same absent way." But not everyone was
impressed.

When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant
from Union City, N.J., saw his picture last year in the exhibition
catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace
for exhibiting and publishing the portrait without permission and
profiting from it financially. The suit sought an injunction to halt
sales and publication of the photograph, as well as $500,000 in
compensatory damages and $1.5 million in punitive damages.

The
suit was dismissed last month by a New York State Supreme Court judge
who said that the photographer's right to artistic expression trumped
the subject's privacy rights. But to many artists, the fact that the
case went so far is significant.

The practice of street photography has a long tradition in the
United States, with documentary and artistic strains, in big cities and
small towns. Photographers usually must obtain permission to photograph
on private property — including restaurants and hotel lobbies — but the
freedom to photograph in public has long been taken for granted. And it
has had a profound impact on the history of the medium. Without it, Lee
Friedlander would not have roamed the streets of New York photographing
strangers, and Walker Evans would never have produced his series of
subway portraits in the 1940's.

Metropolitan Museum of Art, Walker Evans ArchiveWalker Evans took a series of pictures on the sly in the subway in the 1940's; "Subway Passenger, New York City."

Remarkably, this was the first
case to directly challenge that right. Had it succeeded, "Subway
Passenger, New York City," 1941, along with a vast number of other
famous images taken on the sly, might no longer be able to be published
or sold.

In his lawsuit, Mr. Nussenzweig argued that use of the
photograph interfered with his constitutional right to practice his
religion, which prohibits the use of graven images.

New York
state right-to-privacy laws prohibit the unauthorized use of a person's
likeness for commercial purposes, that is, for advertising or purposes
of trade. But they do not apply if the likeness is considered art. So
Mr. diCorcia's lawyer, Lawrence Barth, of Munger, Tolles & Olson in
Los Angeles, focused on the context in which the photograph appeared.
"What was at issue in this case was a type of use that hadn't been
tested against First Amendment principles before — exhibition in a
gallery; sale of limited edition prints; and publication in an artist's
monograph," he said in an e-mail message. "We tried to sensitize the
court to the broad sweep of important and now famous expression that
would be chilled over the past century under the rule urged by
Nussenzweig." Among others, he mentioned Alfred Eisenstaedt's famous
image of a sailor kissing a nurse in Times Square on V-J Day in 1945,
when Allied forces announced the surrender of Japan.

Several
previous cases were also cited in Mr. diCorcia's defense. In Hoepker v.
Kruger (2002), a woman who had been photographed by Thomas Hoepker, a
German photographer, sued Barbara Kruger for using the picture in a
piece called "It's a Small World ... Unless You Have to Clean It." A
New York federal court judge ruled in Ms. Kruger's favor, holding that,
under state law and the First Amendment, the woman's image was not used
for purposes of trade, but rather in a work of art.

Also cited
was a 1982 ruling in which the New York Court of Appeals sided with The
New York Times in a suit brought by Clarence Arrington, whose
photograph, taken without his knowledge while he was walking in the
Wall Street area, appeared on the cover of The New York Times Magazine
in 1978 to illustrate an article titled "The Black Middle Class: Making
It." Mr. Arrington said the picture was published without his consent
to represent a story he didn't agree with. The New York Court of
Appeals held that The Times's First Amendment rights trumped Mr.
Arrington's privacy rights.

In an affidavit submitted to the court on Mr. diCorcia's behalf, Peter
Galassi, chief curator of photography at the Museum of Modern Art, said
Mr. diCorcia's "Heads" fit into a tradition of street photography well
defined by artists ranging from Alfred Stieglitz and Henri
Cartier-Bresson to Robert Frank and Garry Winogrand. "If the law were
to forbid artists to exhibit and sell photographs made in public places
without the consent of all who might appear in those photographs," Mr.
Galassi wrote, "then artistic expression in the field of photography
would suffer drastically. If such a ban were projected retroactively,
it would rob the public of one of the most valuable traditions of our
cultural inheritance."

Neale M. Albert, of Paul, Weiss, Rifkind, Wharton & Garrison,
who represented Pace/MacGill, said the case surprised him: "I have
always believed that the so-called street photographers do not need
releases for art purposes. In over 30 years of representing
photographers, this is the first time a person has raised a complaint
against one of my clients by reason of such a photograph."

State
Supreme Court Justice Judith J. Gische rejected Mr. Nussenzweig's claim
that his privacy had been violated, ruling on First Amendment grounds
that the possibility of such a photograph is simply the price every
person must be prepared to pay for a society in which information and
opinion freely flow. And she wrote in her decision that the photograph
was indeed a work of art. "Defendant diCorcia has demonstrated his
general reputation as a photographic artist in the international
artistic community," she wrote.

But she indirectly suggested that other cases might be more
challenging. "Even while recognizing art as exempted from the reach of
New York's privacy laws, the problem of sorting out what may or may not
legally be art remains a difficult one," she wrote. As for the
religious claims, she said: "Clearly, plaintiff finds the use of the
photograph bearing his likeness deeply and spiritually offensive. While
sensitive to plaintiff's distress, it is not redressable in the courts
of civil law."

Mr. diCorcia, whose book of photographs
"Storybook Life" was published in 2004, said that in setting up his
camera in Times Square in 1999: "I never really questioned the legality
of what I was doing. I had been told by numerous editors I had worked
for that it was legal. There is no way the images could have been made
with the knowledge and cooperation of the subjects. The mutual
exclusivity that conflict or tension, is part of what gives the work
whatever quality it has."

Mr. Nussenzweig is appealing. Last
month his lawyer Jay Goldberg told The New York Law Journal that his
client "has lost control over his own image."

"It's a terrible invasion to me," Mr. Goldberg said. "The last thing a person has is his own dignity."

Photography
professionals are watching — and claiming equally high moral stakes.
Should the case proceed, said Howard Greenberg, of Howard Greenberg
Gallery in New York, "it would be a terrible thing, a travesty to those
of us who have been educated and illuminated by great street
photography of the past and, hopefully, the future, too."

March 20, 2006

COMEDIES OF FAIR U$E: A Search for Comity in the Intellectual Property Wars...
(whereby among other things
"Joywar" is revisited in the flesh by Joy Garnett and Susan Meiselas (9:45am Saturday, April 29th),
and many other stories are traded...scroll down for
list of panelists) UPDATE 3/29/06: Alas, Susan Meiselas apparently will not be joining us in this discussion...UPDATE 4/20/06: Yes, Susan will be able to make it!
...................................................................

Some of the most contentious issues
bedeviling cultural life today are increasingly coming to revolve
around the question of what proper deference ought to be paid to the
notion of intellectual property. Just what is copyright, what is its
point, who is it designed to protect (individual creators and their
legatees, be they individual or corporate, and necessarily to the same
extent?) and what is it designed to foster (the most thrivingly fertile
intellectual community and intercourse possible?)? How might such
objectives, thus stated, be internally at odds, and how might such
tensions in turn be resolved? What sorts of product ought to be
copyrightable and for how long? To what (increasing?) extent is the
cultural/intellectual commons being divied up, fenced off into ever
more diminutive swaths of barbed and monetarized terrain? And what
exceptions ought to be made to this tendency? What is "fair use" and
how ought it to be extended (and perhaps expanded)? How do all these
issues play out across different media-textual (books and magazines),
visual (photos, paintings, films), and aural (musical)? And to what
extent are rampaging developments on the cyberfront expanding or
constricting all possibilities in this regard?

The last weekend of this coming April (April 28, 29, and 30), the New
York Institute for the Humanities at NYU will be bringing together
practioners and artists (many from among the ranks of its own
distinguished fellowship), along with lawyers, judges, historians,
theorists and philosophers, in order to explore various aspects of
these questions. Robert Boynton of the NYU Journalism faculty, one of
the principal chroniclers of developments in this field, and Lawrence
Lessig of Stanford University, arguably the field's most dynamic
activist, are collaborating in helping to convene and steer the
conference.

The Friday evening session will focus on Google's highly controversial
project of digitizing the entire contents of some of the world's
greatest libraries, not necessarily with the prior approval of the
relevant copyright holders.

Saturday will see separate sessions devoted to the confounding
situations swirling around the practices, respectively, of artists,
scholars, musicians and documentary filmmakers.

On Sunday, panelists will try to see if there is some way to move past
the various impasses involved, and toward a regime of greater comity
among creators and users of intellectual property, especially when
these are often the same people in different phases of their work.

CENSORING CULTURE: CONTEMPORARY THREATS TO FREE EXPRESSIONIn this groundbreaking anthology published this month by The New Press—Robert Atkins and Svetlana Mintcheva
bring together the latest thinking of art historians, cultural
theorists, legal scholars, and psychoanalysts, as well as first-person
accounts by artists and advocates, to provide an expanded understanding
of 21st-century censorship, when the media-fueled, culture war-style
scandal is simply another diverting spectacle.

In CENSORING CULTURE, Atkins and Mintcheva argue that today
censorship is just as likely to be the result of a market force or a
bandwidth monopoly than a line edit or the covering of a nude, and the
censor to be found hidden behind the need to "protect" children or the
sensitivies of racial, religious, or sexual minorities. Widespread and
little understood, self-censorship is also discussed, and the authors
argue that it is sometimes not merely necessary, but salutary.

March 19, 2006

WC Ally#1, Bruce Sterling, just gave two major talks back to back and both should be of immediate interest to worldchangers.

The first, delivered at the O'Reilly Emerging Technologies conference, is all about spimes. the emerging Internet of Things and why people keep making up terms like "spime" and phrases like "the Internet of Things"

"A
neologism, a completely made-up word like 'spime,' is a verbal framing
device. It's an attention pointer. I call them "spimes," not because I
necessarily expect that coinage to stick, but because I need a
single-syllable noun to call attention to the shocking prospect of
things that are plannable, trackable, findable, recyclable, uniquely
identified and that generate histories.

I also wanted the word
to be Google-able. If you Google the word 'spime,' you find a small
company called Spime, and a song by a rock star, but most of the online
commentary about spimes necessarily centers around this new idea,
because it's a new word and also a new tag. It's turning into what
Julian Bleecker calls a 'Theory Object,' which is an idea which is not
just a mental idea or a word, but a cloud of associated commentary and
data, that can be passed around from mouse to mouse, and linked-to.
Every time I go to an event like this, the word "spime" grows as a
Theory Object. A Theory Object is a concept that's accreting attention,
and generating visible, searchable, rankable, trackable trails of
attention."

The second, his keynote speech at South by Southwest, which you can listen to here,
is an entirely different beast altogether. While Bruce throws the crowd
some juicy technical tidbits here as well, primarily the SxSW speech is
about the future we're building, and what we ought to do about it:

"When
you actually ignore reality for years on end, the payback is a bitch
brother! ... We're seeing just frantic collisions of fundamentalist
delusion with objective reality... We're on a kind of slider bar
between the unthinkable and the unimaginable now, bteween the grim
meathook future and the bright green future. There are ways out of this
situation; there are actual ways to move the slider bar from one side
to the other, except that we haven't invented the words for them yet."

The
challenge, Bruce says, is that the worst people in the world --
genocidal ethnic mafiosos, fundamentalist fanatics, Washington
lobbyists -- are running the show, American government has become the
new Soviet Union (ossified, corrupt and widely perceived as
illigitimate by the rest of the planet) and things are not good in much
of the world. That said, if you look honestly at the world, you see a
new story emerging, with millions of smart, dedicated people locked in
a struggle to steer us towards a better future using every tool in
their power, and that "that's a big story!" Finally, he reminds those
of us who are part of that story of the motto of the old Soviet-era
Eastern European dissidents: "Make no decision out of fear."

That's damn good advice. These are damn fine speeches. Bruce, well done.

PS:
the photo is one someone sent me after last year's SxSW. I don't
remember who, I'm afraid -- if it's you, ping me and I'll give you due
credit. Better yet, if anyone has a digital shot from the actual
speech, send it along.

THE eccentric English artist Samuel Palmer may be something of a
one-hit wonder. In 1825, at age 20, he made a series of small, dark
landscapes of brown ink, sepia and gum arabic on paper, enumerating the
natural world with such fervent meticulousness that the images
transcend reality and stop just short of freaky.

They were made the year after Palmer, a precocious artist who began
exhibiting and selling his work at 14, met the visionary William Blake.
He was taken to visit Blake, then in the final destitute years of his
life, by John Linnell, an artist who was first Palmer's mentor
(encouraging him to study Dürer, for example) and later his
father-in-law. Despite his situation, Blake's faith in the power of the
individual imagination was undaunted. The encounter affirmed Palmer's
desire to make his love of nature and literature the center of his art,
and also encouraged him to see beauty as dependent on what he liked to
call strangeness.

Palmer called these small landscapes his "
blacks," but they are more generally known as the Oxford sepias, partly
because the six in this exhibition are owned by the Ashmolean Museum at
Oxford University. However you identify them, they form the heart of
"Samuel Palmer (1805-1881): Vision and Landscape," a revelatory
retrospective at the Metropolitan Museum of Art.
The first big Palmer show in nearly 80 years, it is a collaboration
between the British Museum and the Met, and has been organized by a
team led by William Vaughan, a longtime scholar of Romanticism. That
nothing in this show is quite as great as the sepias can be counted as
a failing or taken as a vivid lesson in the power of one-hit wonders,
and the sometime modesty of greatness. All you need to do is make
history turn on a dime once, however quietly.

Palmer's sepias
take us deep into the mysterious harmony of the natural world. Animals
and humans are often present — note the hyperalert rabbit and
half-hidden villagers in the resplendent "Early Morning" — and houses
and barns crop up in the distance. But the main character is nature, in
its wholeness and divineness, measured out in slightly stiff renderings
of effulgently leafy bushes, glimmering birches, massive oaks and
gnarly rocks, and in occasional moments of breathtaking ambiguity. In
"Late Twilight," a crescent moon overlooks a dark farm while floating
on a horizon of glowing white that probably denotes clouds, but also
reads as a vast beneficent sea separating heaven and earth.

A Cornfield by Moonlight with the Evening Star by Samuel Palmer. Watercolour with bodycolour and pen and ink c.1830.

Palmer
is the least known, and most idiosyncratic, of the great Romantic
landscape painters who flourished in Britain in the first half of the
19th century. Turner and Constable, for example, hold steady in our
field of art historical vision — partly because of the scale of their
work, the freedom of their paint handling and their sustained,
ever-strengthening consistency.

But Palmer avoided all of the
above, and has often been characterized as an illustrator. He favored
paper over canvas, rarely made work that exceeded the size of an open
book and used oil paint infrequently. (You have to get close to his
surfaces to realize how profligate and inventive he was with materials.
Like Blake, he concocted strange alchemical mixtures. Only 9 of the 100
Palmers in this show use oil paint; only 2 use it without adding
tempera, chalk or ink.) [read on...]